dissenting:
I must respectfully dissent from the opinion of my colleagues. They have determined that our recent decision in People v. Sonntag (1984), 128 Ill. App. 3d 548, is irrelevant to a disposition of this case, and I disagree. Even the State, during oral argument, admitted that it could not prevail in the present case unless we reconsidered and overturned Sonntag.
In Sonntag, this court addressed a question similar to that raised here. The issue in Sonntag was whether a defendant may combine two separate periods of incarceration, interspersed by defendant’s release on bond and termination of bond by violation of its conditions, arising out of the same initial charge in computing the 120-day period. (People v. Sonntag (1984), 128 Ill. App. 3d 548, 553.) In Sonntag, defendant was charged with and incarcerated for aggravated battery and other misdemeanor offenses. He filed a petition to raise a bona fide doubt of his fitness to stand trial, and the court granted a hearing on it. He was subsequently released on a recognizance bond, with certain conditions imposed, and, upon violating one of the conditions, his bond was revoked and he was incarcerated until his trial. In computing the days he spent in custody, defendant combined the two periods of incarceration, both before being released on bond and after his bond was terminated. 128 Ill. App. 3d 548, 551-52.
The State in Sonntag argued, as here, that section 103 — 5(a), pertaining to trial for persons in custody, contemplates a continuous period of 120 days’ incarceration from the date defendant was originally taken into custody. It argued that defendant’s release on bond terminated the running of the 120-day term. People v. Sonntag (1984), 128 Ill. App. 3d 548, 552.
The Sonntag court rejected the State’s argument that a continuous period of incarceration is required under section 103 — 5(a), stating:
“The 120-day period prescribed in section 103 — 5(a) commences to run on the date defendant is in custody for the offense for which discharge is sought. [Citation.] Although defendant was released on a recognizance bond for a period of time until that bond was terminated by the court for failure to comply with its conditions, we believe that the delay in trial occasioned by defendant by his release from custody should only temporarily suspend for the time of the delay the time within which he should be tried. *** Thus, under the particular circumstances present here, we conclude that the defendant may combine two separate periods of incarceration in determining whether he has been in custody in violation of the 120-day statutory period prescribed in section 103 — 5(a).” (Emphasis added.) People v. Sonntag (1984), 128 Ill. App. 3d 548, 554.
I recognize that the two periods of incarceration in Sonntag arose out of the same initial charge when defendant’s bond was terminated because of violation of the bond conditions, whereas, in the present case, defendant’s second period of incarceration was a result of his arrest on unrelated charges. In my opinion, the Sonntag rationale applies to the facts of the present case, and no distinction should be made on the basis that defendant’s second incarceration was for unrelated charges. Accordingly, I would combine defendant’s two separate periods of incarceration in determining whether his right to a speedy trial has been violated.
The next question is whether defendant was “in custody” for the present charges between July 24, the date he was arrested and incarcerated on unrelated charges, and August 21, the date he voluntarily withdrew his bond on the initial charges. Defendant contends he was “simultaneously in custody” on more than one charge, pursuant to section 103 — 5(e) of the Speedy Trial Act (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(e)) during this 28-day period after his arrest on the second charges and before withdrawal of his bond on the first charges.
Defendant cites People v. Brown (1981), 94 Ill. App. 3d 609, aff’d (1982), 92 Ill. 2d 248, and People v. Wilson (1974), 19 Ill. App. 3d 466, in support of his position. In both Brown and Wilson, the defendant was arrested and incarcerated on the initial charges, later released on bond, and, during that time, reincarcerated on unrelated charges. In both cases, defendant’s bond on the initial charges remained in effect during the second period of incarceration. The appellate court in Brown addressed the question of the irreconcilability of People v. Wilson (1974), 19 Ill. App 3d 466, and People v. Cooper (1977), 56 Ill. App. 3d 354, as to the interpretation of “simultaneously in custody upon more than one charge” when defendant is technically on bond for one of the charges. The Brown court, in a well-reasoned opinion, rejected the reasoning of Cooper and instead adopted the following language from Wilson:
“The fact that the defendant is technically on bond for one of the charges should not defeat the purpose of [section 103— 5(e)]. *** [W]e hold that, when a defendant is simultaneously charged with more than one offense and when he is in custody, he is ‘simultaneously in custody upon more than one charge’ within the meaning of subsection (e).” People v. Wilson (1974), 19 Ill. App. 3d 466, 468, see People v. Brown (1981), 94 Ill. App. 3d 609, 614, aff’d (1982), 92 Ill. 2d 248, 255.
In affirming People v. Brown, our supreme court stated that the question at bar “is not here in dispute.” It is clear from the facts in Brown, however, that the supreme court could not have reached its decision without implicitly approving the rationale of the appellate court in adopting the Wilson reasoning rather than that of Cooper. I interpret this as an implicit rejection of the Cooper reasoning.
In my opinion, defendant was “simultaneously in custody” within the meaning of section 103 — 5(e) (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(e)) between the date of his incarceration on the subsequent unrelated charges (July 24) and the date he voluntarily withdrew his bond on the initial charges (August 21). I would include this 28-day period in computing the total number of days defendant was in custody prior to trial.
In sum, I would calculate defendant’s time in custody as follows. Defendant was initially incarcerated for 45 days, from June 3, 1980, to July 18, 1980, when he was released on bond. He was in custody another 83 days, from his incarceration on unrelated charges on July 24, 1980, to his filing of various motions on October 15, 1980. Since the total time in custody was 128 days, in excess of the 120-day statutory term, I would conclude that defendant’s right to a speedy trial has been violated and that the statute requires his discharge without remand.
Accordingly, I would reverse defendant’s conviction.